SOBY GEORGE Vs. KALABHAVAN , A SOCIETY REGD

JUDGEMENT

(1.) Defendant in O.S. No. 610 of 2009 of the court of learned Principal Sub Judge, Ernakulam is the petitioner before me. He seeks a direction to the learned Sub Judge to hear maintainability of the suit as a preliminary issue. Respondent has sought for recovery of money allegedly being arrears of licence fee based on an agreement dated 01.06.2004, memorandum of understanding dated 28.07.2006 and on account of sale of a bus, musical instruments, equipments, etc. According to petitioner the suit itself is not maintainable for the reason that claim made in the plaint arises out of a right relating to trade mark which under Section 134 of the Trade Marks Act, 1999 can be instituted only before the District Court and also for the reason of suit being barred under Section 11 of the Code of Code of Civil Procedure (for short, "the Code") in view of decision in O.S. No. 41 of 2007 of the court of learned Additional District Judge-II, Ernakulam which is under challenge in this Court in R.F.A. No. 307 of 2008. According to the learned Counsel notwithstanding the above contentions raised in the written statement and a request to decide maintainability of the suit as a preliminary issue learned Sub Judge has proceeded to pass Ext.P12, order appointing a Commissioner.

(2.) I am not called upon, and I do not also find reason to interfere with Ext.P12, order in this proceeding. Grievance of petitioner is that maintainability of the suit in spite of having been raised in the written statement has not been considered by the learned Sub Judge. Learned Sub Judge is directed to consider maintainability of the suit on the plea raised by petitioner in the written statement if it attracted Rule 2(2) of Order XIV of the Code and if, having reference to that provision it is possible to decide maintainability of the suit raised by the petitioner as a preliminary issue, and, if so, pass appropriate orders on the issue.